Copyright Law Blog: Exclusive Rights

Monthly Archives: November 2009

Transcript and video of the confirmation hearing for IP-Czar nominee Espinel

Shourin Sen - 4 November 2009 – 10:16 pm

Filed under IP Czar, News

The Senate Judiciary Committee held a hearing today on the nomination of Victoria Espinel for the position of Intellectual Property Enforcement Coordinator. I have included video and a transcript of the hearing below.

[Hearing to consider pending nomination Part II begins, after introductions, at around 94:00]

Leahy (D-VT) [100:30:] If you were confirmed as the Intellectual Property Enforcement Coordinator, or IPEC, would you be willing to appear before the Committee and testify?

Espinel: Yes I would. As you know so well, this role was created and defined by legislation and this position is fully accountable to Congress. Among the duties that I would have if I were confirmed would be to submit an annual report to Congress that would report on the activities of the interagency committees that I would chair. If I am confirmed I look forward to working closely with this Committee, and ensuring that you receive information that is both timely and useful.

Leahy (D-VT) [102:30]: Is there anything that you would like to add to [the record]?

Espinel: I would say that I would like to thank the President. I would very much like to thank you Mr. Chairman Leahy and the members of the Committee. I am greatly humbled to be here and I would like to thank you for your leadership in creating this position and supporting the intellectual property that supports our country.

Feingold (D-WI) [121:10] Ms. Espinel, your prepared testimony is certainly a strong statement about the importance of enforcing intellectual property rights, and no one could really argue with that. You speak convincingly about the coordination among the various agencies that is needed to ensure the enforcement and protection are done efficiently. Can you give me an idea of what steps you will take to make sure that these enforcement activities do not undermine public
access to information that is so crucial for innovation and other priorities of the United States; and specifically, do you see it as part of your portfolio to coordinate with science and information library agencies on this issue?

Espinel: Thank you Senator. I think it’s part of this position to coordinate and find a consensus among all the different agencies and offices of the U.S. Government that are charged with protecting and enforcing intellectual property, and place importance on intellectual property.

I think intellectual property is a long-term strategy in many ways so that there will always be issues, as with all policy areas, where there will have to be balances found. One of the things that I think this position is poised to do is try to work with in a very open and transparent way all of the agencies and all of the stakeholders and the general public of the United States to try to develop a strategy that will protect intellectual property efficiently and effectively, but will do that taking into account the variety of views and opinions that exist.

Feingold (D-WI) [123:30]: So do you agree that overzealous enforcement of intellectual property rights could reduce our citizens’ legitimate access to information? And will you ensure transparency in policy development so that all of the ramifications of these enforcement activities can be accessed with the maximum public involvement?

Espinel: This Administration is very committed to transparency. If I am confirmed by the Senate, I will uphold that policy of transparency and take it very seriously. And I will look for the appropriate forum to do so within the office that I will head.

Franken (D-MN) [1:23:10]: The FCC recently put out a proposal for a more free and open internet. Net neutrality rules. I think what they’re doing is critically important. When Justice Sotomayor was in her hearings I raised this issue as a Constitutional issue of making sure that information flows freely on the internet. Ms. Espinel, I also want to prevent piracy, and you’ve talked about balance. So speaking of balancing, how should regulations balance the need to stop piracy with the need to protect the free flow of information on the internet?

Espinel: Thank you Senator. I think that is an excellent and very important question these days. Clearly internet piracy is a very serious problem our country is facing, and has serious ramifications for our economy. At the same time, openness on the internet is one of the reasons that the internet has been so successful and helpful to so many over the past few decades.

Openness however doesn’t apply to unlawful content. I believe there is way to ensure that the internet is open and we’re not restricting access to legitimate information to people, while trying to contain the very serious problem of internet piracy that we face. As you mention, the FCC is looking at this at this moment. If I were confirmed I would certainly be working with the FCC as well as the other relevant agencies to try to develop a strategy that would efficiently protect and try to stop internet piracy. But one that is consistent with this Administration’s policy of transparency and trying to ensure that we promote the internet.

Franken (D-MN) [125:40]: What do you see as some of the main tensions there? I would just like to get your thoughts on that because there’re all kinds of issues of maintaining your network — people trying to download enormous files — versus the free flow and no restrictions . . . What do you see as the tensions? Net neutrality and this whole issue of intellectual property?

Espinel: I don’t know that there necessarily have to be those tensions. I know that exist, but it seems to me that there has to be a way that we can find to move forward where we can ensure that the internet is open, ensure that there is reasonable management of networks, and at the same time, try to ensure that the internet is not being used as a means of distribution for all types of illegal content, including pirated content.

If I was confirmed, one of the issues that I would be grappling with in coordination with the other agencies is how we go forward in devising a strategy that accomplishes both of those goals.

Motion to reconsider denied in Superman termination dispute

Shourin Sen - 4 November 2009 – 9:00 am

Filed under Registration, Termination

Siegel v. Warner Bros. Entertainment Inc., 2009 WL 3526576 (C.D. Cal. 2009)

The Central District of California denied Warner Brothers’ motion to reconsider its decision from late August construing 37 C.F.R. § 201.10(e)(1), the harmless error rule that comes into play when an author makes a mistake when filing a notice of termination. To briefly review, the heirs of the co-creator of Superman failed to identify two weeks of early comic strips in its notice of termination to the Copyright Office, which included tens of thousands of other works and stretched five hundred and forty-six pages. The termination filing, however, included a catch all provision:

[E]ach and every work (in any medium whatsoever, whenever created) that includes or embodies any character, story element, or indicia reasonably associated with SUPERMAN or the SUPERMAN stories, such as, without limitation, Superman, Clark Kent, Lois Lane, Perry White, Jimmy Olsen, Superboy, Supergirl, Lana Lang, Lex Luthor, Mr. MXYZTPLK . . ., Ma and Pa Kent, Steel, the planet Krypton, Kryptonite, Metropolis, Smallville, or the Daily Planet. Every reasonable effort has been made to find and list herein every such SUPERMAN-related work ever created. Nonetheless, if any such work has been omitted, such omission is unintentional and involuntary, and this Notice also applies to each and every such omitted work.

The Court decided not to reverse its previous finding that the omissions did not invalidate the termination for the two weeks of the strip. A taste from the decision:

[The] “constructive notice” effect so touted by defendants is not a concept to be bandied about in the abstract, as if it were an end unto itself. Such notice is informed largely by its purposes-it is a means to an end. To posit that any member of the public who was interested in exploiting Superman would somehow confine their review of the lengthy registration of the works in that character in the records of the Copyright Office to but a couple weeks’ worth of newspaper strips in January, 1939, is, from a practical business perspective, nonsense. Instead it would transform the harmless error inquiry into an entirely wooden enterprise, shaped entirely by and made subservient to the formalities of the rule itself. Should any third party be interested in exploiting those original copyrightable elements found in those strips, they would have also searched other works to successfully utilize them (works that were in fact listed in the termination notices), and upon doing so discover the termination notice (and the catch-all clause contained therein), putting them on inquiry notice that the termination notice also applied to those strips. The valuable copyrightable story elements to the Superman character contained in those strips (Krypton, Jor-L, etc.) do not exist in a vacuum. As defendants have repeatedly noted to the Court throughout this litigation, Superman is comprised of many different elements which, but for the results of this litigation itself, are considered and marketed part of an aggregate whole, not as tiny individual copyrightable bits (a red cape here, a particular villain there, x-ray vision and the ability to fly over here, an alter ego personality to peruse around the corner, or a far away doomed planet over the horizon). The copyright in the Superman character exists as a conglomerate representing the story that has been told of him through seventy years of exploitation.

Wu on fair use and the Fairey Hope image

Shourin Sen - 2 November 2009 – 9:00 am

Filed under Academia, Fair Use

Tim Wu, Professor of Law at Columbia and blogger, wrote an article for Slate last week titled “Is There ‘Hope’ for Shepard Fairey? How does fair-use law work, anyway?” The article strikes me as good vehicle to explain fair use to people who are just starting to explore copyright in that it is sufficiently wonky to dig beneath the surface of a sometimes murky issue, but at the same, written in prose that is geared towards a broader audience. Wu explains fair use through situational categories, similar to the type suggested in Pamela Samuelson’s work Unbundling Fair Use:

What counts as a “good reason”? In addition to our two examples, take a look at what has been declared fair use by courts or legislatures. They include:

Quotations of reasonable length

Parody (but not satire)

Use in news reporting

Time-shifting (recording TV for later viewing)

Thumbnailing (resizing) for image search engines

Reverse-engineering for a new operating platform (figuring out what you need to do to write a game that works on a Sony Playstation)

Limited copying for classroom or educational use

Wu proceeds to pin down why so many copyright pundits are fascinated by the Associated Press-Shepard Fairey copyright dispute, at least before the recent revelations about the assertions in Fairey’s complaint: It presents a new category that has yet to be evaluated:

Shepard Fairey’s case, setting aside his recent troubles for a moment, is one of these new areas. To “Warholize” someone else’s photo (if that’s the right verb) doesn’t fall within an existing category of fair use. So the question is whether it should.

Wu ends by explaining why the four factors Judge Story used in Folsom v. March, now embodied in law in 17 U.S.C. 107, often seem to play a marginal role when courts evaluate fair use today, outside of the context and era of the opinion:

Oddly enough—and, to my mind, for no particularly good reason—other thoughts of Story’s from 1841 on fair use remain the law. In Story’s time, the Supreme Court heard a copyright dispute over an abridgment of a long biography of George Washington. Story wrote “we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” . . .

Is the [Hope image] fair use? Odds are, Story’s general principles didn’t answer the question for you. More probably, you have a gut reaction of some kind, which is, of course, how judging generally works—as Justice Oliver Wendell Holmes once put it, judges decide first and write their reasons later.